The short answer to this question is that it depends.  For example, allowing an employee to use paid time off and swap shifts with coworkers to cover Saturday absences due to religious observance may not be enough to fulfill an employer’s reasonable accommodation requirements under Title VII, according to a recent court decision. 

In Tabura v. Kellogg USA, the United States Court of Appeals for the Tenth Circuit reversed a district court decision granting an employer’s motion for summary judgment on the ground that it provided reasonable accommodation to employees’ schedule constraints due to the religious practice of observing Sabbath.  In Tabura, the plaintiffs, Richard Tabura and Guadalupe Diaz, were Seventh Day Adventists who worked at a Kellogg food production plant.  They were assigned to work a shift that consisted of 12-hour days, including Saturday work every other week.  When they informed management that their religious beliefs prohibited them from working on Saturdays, the company allowed them to address their absences by using paid vacation, sick/personal time and/or to swap shifts with coworkers. 

The plaintiffs’ accrued and available paid time off did not cover all the Saturday shifts they had to work, and swapping shifts proved difficult.  Because they were unable to adequately cover their absences, the employees acquired disciplinary points for their absences.  Over time, the accumulation of points resulted in progressive discipline that ultimately led them to be terminated.  They challenged the decision in court, alleging religious discrimination under Title VII of the Civil Rights Act of 1964, failure to accommodate their religious beliefs, and retaliation.   The Tenth Circuit ended up considering whether Kellogg failed to provide reasonable accommodation to the plaintiffs, ultimately concluding that they were entitled to a trial on this issue. 

Title VII requires that an employer provide reasonable accommodation to an employee’s religious needs unless doing so would create an undue hardship.  To evaluate whether an employer has met its obligations under this law, the Tenth Circuit considers whether the facts of the case suggested that the employers’ accommodation was in fact “reasonable.” 

In concluding that legal questions still exist on whether the employer met its obligations under Title VII, the court reasoned that:

• There are questions regarding whether accommodating the schedule request through applying the company’s general requirement that schedule changes be addressed through use of accrued and available paid time off and/or shift swaps was reasonable. The questions exist because:
  • Evidence suggests that the plaintiffs did not have enough paid time off to cover all of their Saturday shifts.
  • The record also shows that the plaintiffs had great difficulty swapping shifts with qualified and available coworkers.
  • There is disputed evidence that Kellogg may not have been that helpful in the plaintiffs’ efforts to swap shifts, leading the court to note that “a jury could find that, in light of the difficulties Plaintiffs had in arranging shift swaps in this case, Kellogg had to take a more active role in helping arrange swaps in order for that to be a reasonable accommodation of Plaintiffs’ Sabbath observance.”
• There are questions regarding whether the plaintiffs did enough to fulfill their obligation to attempt to use the accommodations Kellogg offered to them.
• There are questions of whether the provision of additional accommodations beyond what Kellogg offered would create an undue hardship for the company such that it did not need to provide them.

As a result of these open questions, the Tenth Circuit reversed the district court’s grant of summary judgment in Kellogg’s favor and remanded the case for further action. 

While the Tenth Circuit decision is not binding on Hawaii employers, it nonetheless highlights a challenge that many employers face – namely, the balance between providing religious accommodation and operational demands associated with employee work schedules.  The Tabura case reminds employers that they need to consider the circumstances surrounding each individual’s request for religious accommodation.  Attempting to apply a one-size-fits-all approach to every situation (i.e., telling employees who request time off for religious observance to follow an existing attendance policy’s requirements) may not be sufficient to meet an organization’s obligations under Title VII.  This is particularly the case where, as in Tabura, it may be clear that a modification to the existing policy, or provision of assistance to an employee attempting to comply with that policy, may be reasonable under the circumstances.